Argued February 10, 2015.
Appealed from No. CAB No. 2013-06. State Agency: Charter School Appeal Board.
Kevin M. McKenna, Exton, for petitioner.
Paul J. Cianci, Huntingdon Valley, for respondents.
BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge. OPINION BY SENIOR JUDGE COLINS. Judge Cohn Jubelirer did not participate in the decision of this case.
JAMES GARDNER COLINS, Senior Judge
This matter is a petition for review filed by Discovery Charter School (Discovery) appealing an order of the State Charter School Appeal Board (Board) tat dismissed for lack of jurisdiction Discovery's appeal from the refusal of the School Reform Commission (SRC) and the School District of Philadelphia (collectively, School District) to act on Discovery's request for amendment of its charter. Because we conclude that the School District's failure to act constitutes a denial of the amendment, we reverse and remand this case to the Board with instructions to review the School District's denial of the amendment in accordance with this Court's decisions in Northside Urban Pathways Charter School v. State Charter School Appeal Board,
56 A.3d 80 (Pa. Cmwlth. 2012) ( en banc ), and Lehigh Valley Dual Language Charter School v. Bethlehem Area School District, 97 A.3d 401 (Pa. Cmwlth. 2014).
The School District granted Discovery a five-year charter under the Charter School Law in 2003 and renewed its charter in 2008 for a second five-year term ending June 30, 2013. (Record Item (R. Item) 16, Discovery 2008 Charter, Reproduced Record (R.R.) at 1400a-1401a, 1404a.) Discovery's charter provides that it " may enroll students in grades K through 8 with a maximum enrollment of 620 students" and that " [t]he Charter School acknowledges and agrees that neither the School District nor the Commonwealth of Pennsylvania shall have any obligation whatsoever to provide any funding in excess of the amount derived from the enrollment limits set forth in this Charter." ( Id., R.R. at 1408a.) Because Discovery agreed to the cap in the written charter that it signed, this enrollment cap is legally valid and enforceable under Section 1723-A(d) of the Charter School Law, 24 P.S. § 17-1723-A(d), which prohibits school districts from imposing enrollment caps on charter schools unless agreed to by the charter school as part of its written charter. School District of Philadelphia v. Department of Education, 92 A.3d 746, 751-53 (Pa. 2014). Discovery's charter further provides that it shall operate its school at 5070 Parkside Avenue, Philadelphia, that it shall not relocate the school to a different facility " without giving notice thereof to the School District not less than sixty (60) days before the proposed ... relocation," and that if the relocation " constitutes a material change," it shall not relocate " without the prior written consent of the School District, which consent the School District shall not unreasonably withhold, condition or delay." (R. Item 16, Discovery 2008 Charter, R.R. at 1406a.) Discovery's student population is over 98% black (non-Hispanic) and 13% of its students have Individual Education Plans. (R. Item 24, Combined Certified Record Item (C.C.R.) 10 School District Draft 2013 Renewal Recommendation Report, R.R. at 1139a-1140a.)
Although Discovery did not meet Pennsylvania's Adequate Yearly Progress (AYP) academic performance standards in three of the five years of its 2003 charter, in its renewal term it was rated as " Making Progress" in 2008-2009 and it met AYP standards in 2009-2010, 2010-2011 and 2011-2012, all three of the most recent years. (R. Item 24, C.C.R. 4 Discovery AYP Report, R.R. at 958a; R. Item 24, C.C.R. 10 School District Draft 2013 Renewal Recommendation Report, R.R. at 1140a.) Discovery's percentages of students scoring proficient or higher in the most recent school year, 2011-2012, were 63.4% in Reading and 72.2% in Math. (R. Item 24, C.C.R. 10 School District Draft 2013 Renewal Recommendation Report, R.R. at 1132a, 1140a.) Throughout its renewal charter term, Discovery's percentages of students scoring proficient or higher consistently exceeded the average for School District schools in Reading and consistently exceeded the average for both School District schools and Philadelphia charter schools in Math. ( Id., R.R. at 1132a.)
Discovery receives more enrollment applications than the number of students that it can admit under the 620-student cap in its charter and it had a waiting list of 1,448 students after its admissions lottery for the 2012-2013 school year. (R. Item 24, ...